Hearsay Exception: Supreme Court Narrows Confrontation Clause

By Stephanie Rabiner, Esq. on March 1, 2011 6:04 AM

Part of the reason courts do not admit most hearsay statements is because they run afoul of the Constitution. The 6th Amendment's Confrontation Clause gives criminal defendants the right to confront (cross-examine) witnesses who are offering "testimonial" evidence against them.

At trial, an officer testified to this conversation, which sparked a round of appeals. The defendant argued that the statement was testimonial in nature, reports the ABA Journal, and because he could not cross-examine the victim, the officer's testimony was impermissible hearsay.

In Michigan v. Bryant, the Supreme Court clarified when a victim's statements are testimonial such that they would amount to impermissible hearsay if testified to by a police officer. Strangely united, Justices Ginsburg and Scalia blasted the majority's decision.

Up until this case, hearsay and Confrontation Clause jurisprudence made it clear that responses to police interrogation are testimonial in nature, and thus not permitted in court. However, the Court considered statements made to police for the primary purpose of assisting in an ongoing emergency to be nontestimonial, and thus admissible hearsay.

This case sought to clarify "primary purpose" and "ongoing emergency."

The Court said that the primary purpose is an objective inquiry--what would be the purpose of a reasonable participant when making the statements? An ongoing emergency, which informs the primary purpose, focuses on "ending a threatening situation."

This is where Justice Scalia got snarky. The majority decision says that an emergency does not end when the victim is no longer in danger--it continues on if there is a threat to first responders and the public. In deciding that there was an ongoing emergency in Bryant's case, the Court pointed to the fact that a murderer was at large, hypothetically putting others in danger.

As Justice Scalia implies, if the Supreme Court can create a fictional universe where a murderer is running around the city trying to attack everyone, then what will stop every other court from doing the same? What will become of the Confrontation Clause and hearsay?